Small claims court: being sued
What to do if you are being sued for $35,000 or less.
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In Ontario, you can be sued in Small Claims Court for money or the return of personal property valued at $35,000 or less. If you’re being sued for more than $35,000, your case would go to the Superior Court of Justice.
You could be sued for:
- Claims for money owed under an agreement, such as:
- goods or services sold and delivered that weren’t paid for
- unpaid loans
- unpaid rent
- non-sufficient funds (NSF) cheques
- Claims for damages, such as:
- property damage
- clothes damaged by a dry cleaner
- personal injuries
- breach of contract
What to do if you are being sued
You don’t need to hire a lawyer or paralegal if you’re being sued. However, you may want to consult a lawyer or paralegal to assist you with the process. If you do not have a lawyer or paralegal, you can find one through the Law Society of Ontario Lawyer Referral Service, offered by the Law Society of Ontario.
If you are being sued in Small Claims Court, you will receive a copy of the court-stamped Plaintiff’s Claim form from the person or business suing you (or their representative).
The form will tell you what you’re being sued for and why. Receiving this form is called being served.
You must reply within 20 days. You can also file a counterclaim (this is a new, separate claim against the plaintiff or other person).
If you ignore the claim, the court will assume that you agree with the claim and you may be noted in default.
After 20 days, you can still reply if the person suing you (the plaintiff) has not made a request to have you “noted in default.” If you are noted in default, the case may continue without you and you won't have a chance to tell your side of the story. The court may order you to pay money or give property to the plaintiff.
How to reply when you’re being sued
When you are being sued, follow the steps below to reply to the plaintiff’s claims.
- Fill out a Defence (Form 9A). You can admit or dispute part, or all, of the claim. Attach copies of supporting documents (for example, contracts, photographs, emails or receipts).
- Give a copy of the Defence and supporting documents to every party suing you (listed on the Plaintiff’s Claim form that you received). This is called serving. Read the Guide to Serving Documents for information about how to serve someone.
- Complete an Affidavit of Service (Form 8A) for each party you served to prove to the court that you gave your Defence to each party.
- Within 20 days of receiving the claim, file your Defence, and all the Affidavits of Service online or with the court office where the plaintiff filed the claim (listed on the first page of the Plaintiff’s Claim you received). If you miss the 20-day deadline, you can still file a Defence if the plaintiff has not asked the court to note you in default.
- Pay the court filing fee of $77.
- The court will inform you about the next steps. This could include attending a settlement conference or a trial.
Making a counterclaim
In addition to filing a Defence, you can make a new claim of your own (called a “counterclaim” or a “defendant’s claim”) if you think either:
- the plaintiff should have to pay for something they did
- you think someone else is responsible for the plaintiff’s loss
If you want to make a counterclaim, you must:
- Fill out a Defendant’s Claim (Form 10A) and attach copies of any supporting documents.
- Within 20 days of filing your Defence, file the Defendant’s Claim and supporting documents online or with the court office where the original claim was filed (listed on the first page of the Plaintiff’s Claim you received).
- Give a copy of the counterclaim and supporting documents to everyone you’re suing (called the “defendants to the defendant’s claim”). This is called serving.
- Complete an Affidavit of Service (Form 8A) for each person who was served.
- File the Affidavits of Service with the court office.
- Pay the filing fee ($108).
What to do if you’re noted in default or there is a default judgment against you
You can’t file a Defence if you are noted in default. The plaintiff can ask the court to order you to pay them what they are asking for (called “asking for a default judgment”). If you have been noted in default or there is a default judgment against you, but you still want to file a Defence, you can either:
- Ask the person suing you if they will consent to you filing a Defence even though you were noted in default or there is a default judgment against you. If they consent, file a Request for Clerk's Order on Consent (Form 11.2A).
- Ask the court to set aside the noting in default or default judgment as soon as is reasonably possible in the circumstances. Be prepared to explain what your defence is and why you missed the 20-day deadline to file a Defence. To do this, file a Notice of Motion and Supporting Affidavit (Form 15A). There is a fee of $127 to file this form.
Read the Guide to Replying to a Claim for information about what to do if you are noted in default or there is a default judgment against you.
Fees when being sued
At the beginning of a Small Claims Court lawsuit, the person suing you (the plaintiff) pays most of the fees.
If the plaintiff wins the case, you (the defendant) may be asked to pay them back for all costs.
The most common fees for defendants include:
- $77 for filing of a Defence
- $33 for issuing a summons to a witnes
Learn more about Small Claims Court fees. Fees are payable in Canadian funds by cash, cheque or money order payable to the Minister of Finance. Where available, fees can also be paid by debit or credit card.
If you think you can’t afford the fees
You can request a fee waiver if you can’t afford to pay the court fees. Learn more about fee waivers.
Going to a settlement conference or trial
After you file a Defence with the court, you will be asked to go to a settlement conference. Read the Guide to Getting Ready for Court for more information on how to prepare for a settlement conference.
If all parties can’t come to an agreement during the settlement conference, the next step may be to go to trial.
How to get ready for a settlement conference
To prepare for your settlement conference, you should review and complete the following tasks:
- Fill out a List of Proposed Witnesses (Form 13A) for the trial. Witnesses are the people who could help you prove your case by telling their story to the court if you go to trial.
- Gather any documents you plan to use to prove your case, such as contracts, pictures or expert reports.
- File the List of Proposed Witnesses and any supporting documents online with the court.
- Give the List of Proposed Witnesses and any supporting documents to the other parties (this is called serving) at least 14 days before the settlement conference. Read the Guide to Serving Documents for specific rules about how to serve documents.
- Go to the settlement conference. If all parties can’t come to an agreement, the next step may be to go to trial.
- If all parties come to an agreement after the settlement conference, a party can file a Terms of Settlement (Form 14D), signed by all parties, with the court to avoid going to trial.
- For claims under $3,500, a judge can decide the case at a settlement conference if both sides file a signed Consent (Form 13B).
Going to trial
At a trial, each party tells their side of the story and the judge makes a decision. The person that started the case (“the plaintiff”) will try to prove:
- that you caused a loss and you owe money or goods to make things right
- how much money you owe, or what property should be returned to the person suing you
You will have the opportunity to explain why the loss was not your fault, or why you don’t agree with the amount of money being asked for.
During the trial, you and the person suing you may:
- call witnesses and ask them questions
- ask the other party's witnesses to answer questions
- show evidence (for example, documents and photographs) to witnesses and the judge
The judge usually makes a decision in court after both parties have presented their case. Sometimes the judge decides later, and the parties are sent a copy of the written decision. Read the Guide to Getting Ready for Court for more information on how to prepare for trial.
What to do if you owe money or goods
If you owe money or goods because someone sued you and the court ordered you to pay them money or give them goods, you will have the opportunity to set up a payment schedule to pay them back.
If you do not make the payments ordered, the plaintiff (now the “creditor”) can take steps to get the money or goods from you (the “debtor”). This is called enforcing the judgment.
The person who sued you can try to get the money:
- by garnishment, for example of your bank account or wages (when money is taken from your bank account or paycheque and given to the creditor)
- through the seizure and sale of personal property or land (taking your personal property or land and selling it, with the profits being used to pay back money owed)
The creditor can find out information about your financial situation by:
- checking with the local credit bureau, enforcement office or land registry office to find out if you own property or other assets
- asking for an examination hearing about your financial situation
At an examination hearing, you may be asked to give information about:
- your job
- property, for example motor vehicles or land
- bank accounts
- reasons for not paying
After looking at this information, the judge may order you to make payments on certain dates.
Read After Judgment – Guide to Getting Results for information about the enforcement process.